State v. Richardson

• Decision Date: 03 April 1917
• Docket Number: 31339
• Citation: State v. Richardson, 179 Iowa 770, 162 N.W. 28 (Iowa 1917)
• Parties: STATE OF IOWA, Appellee, v. FRANK RICHARDSON, Appellant
• Court: Iowa Supreme Court

162 N.W. 28

179 Iowa 770

STATE OF IOWA, Appellee, v. FRANK RICHARDSON, Appellant

No. 31339

Supreme Court of Iowa, Des Moines

April 3, 1917

Appeal from Poweshick District Court.--HENRY SILWOLD, Judge.

INDICTMENT charging defendant with the crime of assault with intent to inflict great bodily injury upon one Harry Horn, by operating and running an automobile over said Horn with specific intent to inflict a great bodily injury upon him and otherwise maltreat him, contrary to statute.Defendant appeals from a conviction under this indictment.

Reversed.

J. H Patton, for appellant.

George Cosson, Attorney General, and H. G. Lyman, for appellee.

SALINGERJ. GAYNOR, C. J., LADD, WEAVER and PRESTON, JJ., concur.

OPINION

SALINGER, J.

I.

A motion to direct verdict for defendant was made, renewed at the close of all the testimony, was overruled, and it is claimed it should have been sustained.It takes the ultimate position that the evidence shows conclusively that the collision with Horn was accidental; that it was due, in part at least, to the fact that, while defendant was traveling where he had the right, his path was obstructed by Horn and his automobile; and that the evidence as a whole shows conclusively that the collision was without specific intent or intent of any sort to inflict a bodily injury upon Horn, great or otherwise; and that, therefore, all of the evidence will not warrant a verdict of guilty, should one be returned.The overruled motion for new trial asserts that the verdict is contrary to the evidence, not supported by sufficient evidence, is the result of passion and prejudice, and is contrary to and not supported by law.

In this condition of the record, we fail to see the relevancy of the argument by the State that "there is no request for instructions upon any feature of the case.The general questions involved in the defense were fully covered by the instructions given, and the appellant is not in a position to complain in this court."It seems clear that he may complain that he was tried on the wrong theory, and was not guilty of the offense charged, and that neither evidence nor the law sustains the verdict returned, and that no judgment should have been entered upon it.We think, too, that the motion to direct and the motion for a new trial fairly raised these questions.

II.The defendant was driving a car which, as to brakes and other equipment, was in such condition as to interfere with efficient control, and perhaps power to stop.In violation of statute, he drove it without lights, and when it was not only dark, but there was a dust storm blowing, which would have greatly impaired the efficiency of lights had he carried them.The jury could find that he was driving at a speed prohibited by statute and, at any rate, at a speed that it was, under the circumstances, negligent to indulge in.He drove towards a place where Horn had his automobile standing, while sitting on his heels close to it attempting to repair a tire.Near and about this car stood other cars.All had lights, although, as said, the condition of the night interfered with sight, even though such lights were present.Defendant drove on under these conditions.Perhaps to avoid collision with one of the cars standing about, and, if you please, through not being sufficiently careful, he struck Horn and threw him some distance.The jury could find that thereafter he did not make a full stop.This, defendant and the inmates of his car explain with a claim that they did not know that anyone had been struck or injured, and supposed that what little jar they felt was caused by running over some small obstruction, like part of a tire, lying in the road.But the jury could also find that this is not a good explanation.There is nothing upon which to find that defendant actually saw the ones he injured, or had any intention to injure them, or anyone.Horn himself makes it perfectly plain that he could see no one that was coming, nor see an unlighted car.There is every reason to believe, and it is not seriously disputed, that defendant could not--at any rate did not--see Horn, and undisputed that defendant and Horn never had words or trouble of any kind, and there never has been difficulty between them.So far from admitting that he had any intent to strike Horn or anyone, defendant says he did not know until an hour after the occurrence that he had struck Horn; that it was dark and he saw no one, and had no intention to strike Horn nor any person who was in the highway with an automobile.These facts constitute the vital premise.The controversy is over what it effects.The State argues that, while the conditions prevailing may argue that defendant could not have had a deliberate intent to injure Horn, what he did do was calculated to seriously injure, and did result in breaking Horn's leg six inches above the ankle; that the darkness, the dust storm, the condition of the car, the violation as to carrying lights, and the speed, instead of helping defendant, make out a case of reckless negligence, and that, the more serious were the obstacles to observing due care, the greater the negligence; that the more defendant persisted in operating under conditions which made it difficult to have due regard for the safety of others, the more negligent and criminal was he.As will presently appear, the court tried the cause on some such theory, and, for one thing, charged in Instruction 2 that, if defendant was driving a car, with brakes that were not properly working, in such way and at such speed that he could not stop or slow down when he met another object in the highway, the jury might regard this as a circumstance showing carelessness and a reckless disposition.Of course, the counter argument is that no negligence, no matter how reckless, can supply specific intent to injure a named person; in effect, that the situation is within a statement which we find in Brown v. Commonwealth,(Va.)10 S.E. 745, that:

"Passion and malice are therefore inconsistent motive powers; and hence an act which proceeds from the one cannot also proceed from the other."

2-a

Let us concede that the jury could well find that defendant was recklessly negligent, and concede that he so operated his car as that he was guilty of the misdemeanor of violating certain statutes regulating the use of automobiles.This brings on for consideration what effect what is thus conceded should have.The court instructed that conviction on the indictment was warranted if, in addition to proving venue, the following matters be proved: (a) That defendant caused the automobile he was using on the public highway to run at the rate of speed at which the jury might find "he was going;"(b) that, in doing so, defendant was negligent and reckless; (c) that, by reason of such negligence and recklessness, his automobile struck Horn, and thereby caused his injury.

It was further charged: (1) While the law presumes negligence from not using lights at times required by statute, it may be negligent not to use lights earlier than that, if darkness prevails earlier.(2) If defendant was driving with brakes that were not properly working, in such a way and at such speed that he could not stop or slow down when he met another vehicle in the highway, the jury might regard this as a circumstance showing carelessness and a reckless disposition.(3)He might have turned to the left as the law directs, in which event he would not have injured Horn, who was rightfully where he was to repair his automobile, and who had the right to assume that all users of the highway would use ordinary care to refrain from wantonly injuring him.(4) Drivers must assume that others are using the highway, and must use increased care in proportion as the view ahead is obstructed by darkness or dust storms.(5) If defendant caused the automobile to run at the speed it was running when Horn was struck, and under the circumstances shown by the evidence, the jury should determine next whether "such act was intentional on his part."(6) The operator of an automobile on a public highway must drive in a careful and prudent manner, and at a speed not dangerous to life or limb.(7) While driving at more than 25 miles an hour is presumptive evidence of not driving in a careful and prudent manner, one may be guilty of careless driving though driving at less speed; and any speed is negligent if it endangers life or limb, because the driver cannot see ahead to avoid injury, though the vehicle of one injured is in plain view except as obstructed by darkness or a dust storm.(8) While defendant was not bound to use the highest degree of care in passing along the road, it was his duty to use such reasonable care to avoid injuring others as, under the circumstances, a prudent man would exercise; and if it is found he did use such reasonable care to avoid injuring others, he should be acquitted.(9) In passing on the question of whether such reasonable care was used, the jury should take into consideration all the testimony as to the defendant's acts and conduct at the time of striking Horn, immediately before and afterwards, his knowledge of the highway, the kind of automobile he was driving, its condition, the time of day and condition of the weather, the speed at which he was driving, and all the other facts and circumstances in evidence bearing thereon.(10) If defendant did not use reasonable care, he should be convicted, if such negligence was the proximate cause of the injury.(11) Careless driving of an automobile and reckless indifference to the life and safety of others, if shown by the evidence, may supply the criminal intent required.(12) If one by careless and reckless driving of an automobile unintentionally run over...